NFIB: Plaintiff's Bankruptcy Presents No Standing Problem


By Hadley Heath

Along with 26 states and the National Federation of Independent Business (NFIB), two individual citizens have acted as plaintiffs in the case that started in the Northern District of Florida and is now before the Supreme Court.  Monday, the Wall Street Journal reported that one of those individuals, a business owner named Mary Brown, filed for bankruptcy, and that this could mean that she no longer has standing to sue.  From the WSJ:

Without owning a business, it could be harder for Ms. Brown to argue she is harmed by the legislation. Meanwhile, her recent financial woes suggest the possibility she would be exempt from penalties for noncompliance with the individual mandate. That raises questions about whether the suit can be based on her experience.

How much of a problem this could cause is hard to predict. If her standing is voided and no replacement can be found, the suit could falter. The 11th Circuit specifically cited the government's acknowledgment of Ms. Brown as a legitimate plaintiff in permitting the suit to proceed. That court is the only one of the four federal appeals courts to have ruled on the law that found any aspect of it unconstitutional.

But Ms. Brown's lawyer, Gregory Katsas, and officials at the NFIB are sure that their case isn't jeopardized by Ms. Brown's change in circumstances.  According to a report from CQ Healthbeat:

Karen Harned, executive director of the NFIB Small Business Legal Center, said that Brown’s bankruptcy is an unfortunate reminder of the economic circumstances faced by small-business owners. “However, it has absolutely no impact on NFIB’s standing in its challenge to the health care law,” said Harned, in a statement.

“In the district court, NFIB’s standing was established by many individual small business-owners, in addition to Mary Brown, all of whom are members of NFIB and who have exercised their right to not purchase insurance,” Harned said. “The lower courts have held that both the NFIB and Kaj Ahlburg have standing to challenge the individual mandate, and Mary Brown’s bankruptcy in no way affects those rulings. Finally, Mary Brown still has standing because she does not have health insurance, and still does not want to be forced to buy it.”


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